Authors

Abstract

There is paid work and unpaid work. The former belongs in the sphere of exchange; the latter, in the sphere of reciprocity. Within the sphere of exchange, contracts are paramount. Contracts are binding promises, that is to say, a legal remedy for breach of contract is warranted by law. Within the sphere of reciprocity, gifts, services rendered gratuitously and non-binding promises thrive. The questions analyzed in this essay relate to the dynamics and overlap between both spheres in the digital environment and are answered by giving workable tests to draw their respective boundaries.

Because contracts are binding promises, a legal remedy for breach of contract is warranted by law. Besides contractual promises, there are many private relationships that are not legally binding. The provinces of their realm are family and kinship, friendship and comradeship, neighborhood, collegiality and community.

Purely private and non-binding relationships are sources of trust and reputation, and are also one of the most conspicuous and least analyzed sources of social capital. Therefore, the first goal of this paper is the demarcation of such social relationships, as opposed to legally binding ones, under the light of an integrated analysis of law and social sciences.

In the Civil Law family, its German and Spanish branches analyze purely private and non-binding relationships to refer to unenforceable agreements (in Spanish, relaciones de complacencia, and in German, Gefälligkeiten).

In a similar way, Common Law analyzes and discusses Non-Binding Agreements, whose content is of a broader nature than that of their Civil Law counterparts. It includes, for instance, gentlemen's agreements in commercial law, or soft law in international relations, institutions that are not dealt with in this paper.

The relevance of private non-binding relationships in the sphere of reciprocity has always been significant: economically speaking, they amount to around 20% - 30% of the gross domestic product in most developed countries.

Second, nowadays, digital technologies have, on the one hand, hugely enlarged the objective and subjective reaches of private relationships unenforceable by design. On the other hand, the internet has allowed legal relationships to be substituted by purely private ones. These relationships can potentially increase our welfare but that does not come without costs, as purely private and non-binding relationships occupy the place and functions of many legal relationships, and disrupt traditional distribution channels of goods and services. The thesis defended in this paper is that this disruption does not necessarily modify the nature of purely private relationships.

The third goal of this paper is to draw a better demarcation of purely and non-binding private relationships, as opposed to legal relationships.

The fourth and last goal is to defend that even though some private relationships are, by the will of the parties who enter into them, unenforceable, they may well generate causes of action based on restitution or unjust enrichment grounds and, of course, parties are not left out of the reach of the law of torts.